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From Gebhard to Carpenter : towards a (non-) economic constitution.

Abstract

The free movement provisions have always been generously construed by the
European Court of Justice. Through a teleological rather than a literal interpretation,
the Court ensured that individuals would enjoy tangible benefits
from their State’s membership of the Community. Further, the Court has
adopted a dynamic interpretation, reflecting both the evolving nature of the
Community integration process, and changes in society.
If, following Keck, the scope of the free movement of goods has been (at
least partially) curtailed, the scope of the free movement of persons provisions
has been considerably broadened. The step towards a non-discriminatory
assessment of the workers and establishment provisions, together with
some developments which have occurred in the field of services, have made
it considerably easier for individuals (and companies) to bring themselves
within the scope ratione materiae of the Treaty. Consequently, an increasing
number of rules are subject to the necessity and proportionality assessment
demanded by the imperative requirements doctrine. This creates three main
problems. First of all, it is debated whether such intrusion into the regulatory
autonomy of the Member States is justified by the Treaty. Secondly, it is increasingly
difficult to assess the boundaries of the free movement provisions.
Thirdly, the practical difficulty in drawing a demarcation line between rules
which can be construed as obstacles to the exercise of the movement rights,
and rules which should fall altogether outside the scope of the Treaty, is reflected
in the difficulty of providing a satisfactory conceptual framework capable
of defining the scope of the Treaty rights whilst also accommodating
the developments of the often confused case law.
This article aims at exploring these problems by focusing on the case law
on non-discriminatory restrictions in the field of free movement of persons.
It will be argued that whilst the discrimination/double burden approach does
not reflect the State of the law, the market access theory either cannot explain
the post-Gebhard case law, or, if it can, it does not provide us with any
indication as to the content of the free movement provisions. It will then be
suggested that the internal market rationale does not provide a valid explanation
for some of the Court’s case law. Rather, the rulings in Gebhard, Gourmet
and Carpenter are part of a broader phenomenon, where the Court is
protecting the citizen qua citizen, rather than simply qua mover, thereby assuming
a role which traditionally pertained to national constitutional courts.
Thus, it will be argued, these cases should be seen in the context of the introduction,
and development, of Union citizenship.
We will start by outlining the different conceptual frameworks elaborated
in relation to the free movement provisions, to then turn our attention to the
case law to assess how the theory relates to the practice, and to suggest a
new framework of analysis.